A.T.Legal provides legal support in the pharmaceutical area

The necessary restrictions and support measures of the Government are aimed at preventing the spread of infection, as well as to reduce the negative impact on business

UNDER THIS PLAN, THE GOVERNMENT PLANS TO IMPLEMENT THE FOLLOWING INNOVATIONS IN PUBLIC PROCUREMENT AND PHARMACEUTICALS

Temporary suspension of the "odd man out" rules for public procurement of pharmaceuticals on the list of goods determined by the RF Ministry of Industry and Trade and the RF Ministry of Health. Introduction of support measures for manufacturers of pharmaceuticals, means of personal protection and disinfectants, including issuance of special loans from the Production Development Fund.

Reducing requirements for contract security in public procurement from SMEs.

Introduction of a mechanism for non-application of penalties, as well as the possibility of extending deadlines and price adjustments in 2020 if a contractor breaches its obligations (within the framework of Law 223-FZ) due to consequences of the spread of the coronavirus.

Non-application of penalties under individual government contracts in case of a breach of obligation due to the effects of the spread of the coronavirus.

Introduction of a mechanism for the non-application of penalties, as well as the possibility of extending deadlines and price adjustments under government contracts if a contractor breaches its obligations due to the effects of the spread of coronavirus.

How can the A.T.Legal team help to your business?

- Promptly advise on any issues related to the public procurement and circulation of medicines in circumstances of force majeure and the introduction of non-working days, to explain decisions of state authorities.

- Effectively help to develop solutions for optimal participation in public procurement and specific ways of finding a supplier in the new conditions.

- Explain the procedure for appealing actions of customers in this situation.

- Conduct a rapid analysis of controversial purchases and determine the sequence of actions.

- Correctly plan with the client the optimal timing of state contracts and deliveries to avoid delays and not to violate the law in terms of the introduction of non-working days according to decisions of state agencies and work of electronic trading platforms.

- Promptly resolve issues if a supplier is threatened with being added to the Registry of Unscrupulous Suppliers due to consequences of the coronavirus spread.

- Assist in drafting necessary documents to suspend government contracts under force majeure circumstances.

 

The following steps have been implemented:

The Ministry of Finance recognizes circumstances associated with the spread of coronavirus infection as force majeure circumstances.

Procurement from a single supplier on the basis of force majeure circumstances is allowed. In such procurement, the Customer may conclude a contract for the supply of goods in the quantity and volume necessary to eliminate force majeure consequences, i.e., there are no restrictions on the scope and amount.

The FAS indicates circumstances, customers have the right to conduct not any procurement, but procurement, aimed at the prevention and elimination of COVID-19 effects, provided there is a causal relationship between the actions of prevention and elimination of COVID-19 and the subject of the procurement.

The FAS has narrowed the subject matter, but A.T.Legal believes that the position of the FAS should be adhered to. Since the Federal Antimonopoly Service inspects customers in the first place. Also, A.T.Legal believes that in this case the customers may not adhere to the FAS position and start buying drugs bypassing auctions.

The "odd one out" rule will be suspended only when the RF Ministry of Industry and Trade and the Ministry of Health approve the list of drugs for which the rule is suspended. Currently this list does not exist yet. Regarding this issue, A.T.Legal monitors the adoption of the relevant act and the list on a daily basis.

The procurement procedure outside of working days according to letters of the RF Ministry of Finance.

Deadlines for submitting requests will not change and are three calendar days; they are applied in accordance with Federal Law No. 44.

Deadlines for consideration of applications, deadlines for auctions, consideration of the second parts of the applications are calculated in working days; in this regard the RF Ministry of Finance points out that these deadlines can be postponed, if the end of the term falls on a non-working day, then this term is postponed to the first working day in accordance with Article 193 of the RF Civil Code.

Terms of contract conclusion: the contract may be concluded by participants of the contract system both on non-working days and on the first working day, if the end of the term was on a non-working day.

Only in respect of state contracts, according to the contract list it is allowed by agreement of the parties to change the term of performance of certain contracts without requiring the supplier (contractor, executor) to pay penalties in connection with delayed performance of obligations under such contracts, caused by the introduction of these measures.  The list contains about 72 state contracts. No other measures on this issue have been established so far.

 

Additional Information

The RF Ministry of Finance points out that there may be a delay in the provision of bank guarantees and their inclusion in the register of bank guarantees before the signing of state contracts, and then the Ministry of Finance reminds us that there is cash collateral. A.T. Legal draws your attention to the fact that in this case, a cash collateral must be provided.

Additional guarantee at the conclusion of contracts in part 16 of article 83.2 in case of force majeure circumstances which prevent signing of the contract by one of the parties in terms established by this article, this party is obliged to notify the other party about existence of these circumstances within one day. In this case, the term established by this article shall be suspended for the period of validity of these circumstances, but not more than for thirty days.

According to Clause 9 of Article 34 of Federal Law No. 44, "A party is exempt from the payment of penalties (fines) if it proves that the failure to fulfill or improper fulfillment of obligations under a contract was due to force majeure". In addition, almost every state contract contains an article on force majeure circumstances, which defines the sequence of actions to be taken by a supplier in the event of a delay in his obligations due to force majeure circumstances.

If you have any questions about this clause, you should contact A.T.Legal and explain a specific situation.

A.T.LEGAL PROVIDES PERMANENT MONITORING OF THE NEW LEGISLATION AND ITS AMENDMENTS, POSITIONS OF STATE AUTHORITIES, ANALYSIS AND RECOMMENDATIONS TO CLIENTS TO ENSURE QUICK DECISION-MAKING BY COMPANIES IN THE BANKING SECTOR DUE TO THE CURRENT SITUATION

 

A.T.Legal

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